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active downstream. This is illustrated in Figure 2, where Xa is now a downstream company owned by A. It is this type of refusal to supply that is analysed in section 9, “Refusal to supply”.55

FIGURE 2

A

Xa

Z

73. The above two-way characterisation of price versus non-price based conduct and exclusion of an upstream versus exclusion of a downstream rival may be visualised in the following table.

55

Sometimes the form of a conduct might seem to be a refusal to supply but in reality the refusal to supply is best seen as an “instrument” to achieve, for instance, single branding or tying and should therefore be analysed according to the framework developed for these abuses in sections 7 and 8. That is, in some refusal to supply cases the concern is similar to the ones described for the first group of abuses. The aim of the refusal to supply is to foreclose an upstream rival from access to downstream customers with the purpose of excluding this rival from its upstream activities. This could, for instance, be the case where A refuses to supply Z if Z also buys from B (a form of single branding) or refuses to supply Z unless Z buys a whole range of products from A (a form of tying).

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